State v. Unger

A Court may review an unpreserved error as a plain error if three requirements are satisfied: (1) the error is one “of law”; (2), the error is “apparent,” that is, “the legal point is obvious, not reasonably in dispute”; and (3) the error appears “on the face of the record.” Whether a trial court erred by failing to merge guilty verdicts is a question of law, which is reviewed for errors of law, and review is bound by the trial court’s record.

Following a remand from the Supreme Court of Oregon Defendant assigned two errors. The first error, Defendant asserted that the trial court violated his right to a jury trial under the Sixth Amendment by instructing the jury that they could return a non-unanimous verdict. The Court held that this assertion failed under its precedent, State v. Bowen. In the second of assignment, Defendant asserted that the trial court erred by failing to merge the guilty verdicts, for manufacture of cocaine, and manufacture of cocaine involving a substantial quantity of the drug. Defendant did not object to the trial court’s failure to merge, therefore The Court reviewed for “plain error.”The State conceded that the trial court plainly erred by not allowing the merger. Reversed and remanded with instructions to merge Count 3 into Count 4 and for resentencing; otherwise affirmed.